AMRATLAL HARIVALLABHDAS Vs. JUNA MADHUPURA VYAPARI MAHAJAN LIMITED

JUDGEMENT

(1.) In a suit filed by the plaintiff-opposite parties Nos. 1 to 3 who will hereafter is referred to as the plaintiffs-against the petitioner (original defendant No. 2) and opposite party No. 1 (original defendant No. 1) inter alia on the basis of sub-letting of the suit premises by opposite party No. 4 to the petitioners a question arose when defendant No. 1 i. e. opposite party No. 4 entered the box as to who should cross-examine the said defendant. In view of the allegations in the plaint and for the sake of clarity we will be describing the petitioner as the sub-tenant opposite party No. 4 as the tenant and the plaintiffs-opposite parties Nos. 1 to 3 as the landlords. So the question which arose was whether the tenant should be cross-examined first by the sub-tenant or the landlords. The trial Court by its decision dated July 18 1974 directed that the sub-tenant will cross-examine the tenant first and it will be followed by the cross-examination of the tenant by the landlords. It is against this order that the petitioner has come in revision to this Court. It may be stated that the claim of the sub tenant was that he was a lawful sub-tenant brought upon the premises by the tenant. As against this the case of the landlords was that the subletting to the said subtenant was illegal.

(2.) The first question which arises for determination is whether the order passed by the trial Court amounts to a case decided as contemplated by sec. 115 of the Civil Procedure Code. The position at law is not in doubt. The Supreme Court in BALDEVDAS SHIVLAL V. FILMISTAN DIST. (INDIA) P .LTD. 1969 (2) SUPREME COURT CASES 201 held that the expression case occurring in sec. 115 is not limited in its import to the entirety of the matter in dispute and that the said expression is a word of comprehensive import and it will include also a civil procceeding as held in S. S. KHANNA V. BRIG. F.J. DILLON A. I. R. 1964 S. C. 497. The Supreme Court further observed in Baldevas Shivlals case (supra) as under: But it was not decided in Major S. S. Khannas case that every order of the Court in the course of a suit amounts to a case decided. A case may be said to be decided if the Court adjudicates for the purposes of the suit some right or obligation of the parties in controversy; every order in the suit cannot be regarded as a case decided within the meaning of sec. 115 of the Code of Civil Procedure. Therefore the test that we have to apply to the present case is whether by the order in question the learned trial Judge adjudicated upon some right or obligation of the parties. It is clear that the order in which the witnesses will be cross-examined does not pertain to domain of rights or obligations of the parties though an adverse party has an undoubted right to cross-examine its adversary and the witnesses of the adversary. The order in which the cross-examination will be made if there is a controversy between the parties on the question who should first cross-examine the witnesses of the adverse party pertains to the domain of the power of the Court regarding conduct of proceeding before it in a regular manner. The right to cross-examine is conceded but the order in which the crossexamination will be made as between two parties who are entitled to cross-examine their adversary is not a right as such. No question of obligation would also arise. It is purely a question falling within the domain or discretion of the Court with regard to the orderly conduct of proceedings before it. This orderly conduct of proceedings before it can be spelt out from the provisions of the Evidence Act in Chapter X relating to examination of witnesses. Sec. 135 of the Evidence Act reads as under: The order in which witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively and; in the absence of any such law by the discretion of the Court. There is no provision of law in the Civil Procedure Code with regard to the order of cross-examination of witnesses. Sec.141 of the Evidence Act relating to leading questions sec. 146 relating to questions lawful in cross-examination sec 147 relating to the circumstances when witness shall be compelled to answer questions and sec. 148 empowering the Court to decide when question shall be asked and when witness shall be compelled to answer pertain to orderly conduct of proceedings in Court. Similarly the question who should cross-examine the adverse party or its witnesses first out of the two contesting parties also pertains to the domain of orderly conduct of Courts proceedings. No question of right or obligation is involved. Therefore the impugned order in the present case cannot amount to a case decided.

(3.) Mr. Shah for the petitioner has relied upon four decisions of Single Judges of this Court of which one is reported as HIRALAL V. M. C. PATHAK A. I. R. AIR 1964 GUJ 26 and other are rendered in C. R. A No. 1057 of 1972 decided by T. U. Mehta J. on 19-9-1972. C. R. A. No. 129 of 1969 decided by Divan J. (as he then was) on 26-10-1972 and C. R. A. No. 473 of 1973 decided by M. P. Thakkar J. on 18-7-1973 in support of his contention that such orders passed by the trial Court can be examined and interfered with in revision under sec. 115 of the Code of Civil Procedure. All these cases pertained to the order in which the parties will lead evidence before the Court and for that matter the provisions of Order 18 of the Code became relevant. The learned Judges had not to deal with the question as regards the order of cross-examination of witnesses in those cases. Besides in none of the said four decisions it was canvassed and decided that the orders would amount to case decided; and the matters came to be decided on the assumption that the impugned orders amounted to case decided. I need not express any opinion at this stage on the question whether the order in which the parties shall lead evidence before the Court would amount to a case decided or not because that question does not crop up before me. But so far as the order of cross-examination of an adversary by two contesting parties is concerned an order passed by the trial Court in exercise of its discretion would not amount to a case decided.